11 P.2d 721 | Kan. | 1932
The opinion of the court was delivered by
This is an action in the nature of specific performance to establish and enforce an alleged parol contract between plaintiff and William Laupheimer by which plaintiff was to have his Kansas property at his death. The trial court made findings of fact and rendered judgment for defendants. Plaintiff has appealed.
Briefly the material facts may be stated as follows; William Laupheimer, for many years a traveling salesman for a wholesale shoe firm, accumulated property which, at the time of his death, March 6, 1930, the trial court found to be of the value of $167,000. It consisted of business properties in Emporia, a third interest in a farm near Emporia, government bonds, stock in building and loan associations, and cash in bank, all held at Emporia, and a $15,000 residence property in St. Louis, Mo. This last property had been purchased as a home for his mother and his only sister, who lived with and cared for the mother for many years. At the time of his death he was a widower. He had no children. He had two stepchildren, one living at Parsons, Kan., and the other at St. Louis, Mo. His only immediate relatives were his brothers, Martin Laupheimer, husband of plaintiff, Alex Laupheimer, who lived at St. Louis, and a sister, Fannie Bamberger, and three nieces, being daughters of his sister, just mentioned. For several years prior to his death he had been afflicted with paralysis agitans, commonly called palsy, which grew worse gradually. About six years prior to his death he retired from active business life except to care for and manage his Emporia property, and, until the change later to be mentioned, made his home at the Mit-Way hotel. For perhaps forty years he had been intimately acquainted with L. J. Buck, a banker at Emporia, and kept his account at the bank with which Mr. Buck was connected. He had made it a practice for many years often and repeatedly to discuss with Mr. Buck his financial affairs and details thereof, although he was himself a shrewd business man and was spoken of as being “hard-headed” in ultimately forming his own judgments and carrying them out. In October,
Martin Laupheimer had lived at Wichita, where his wife obtained a divorce from him in November, 1923. Soon thereafter he married plaintiff, many years his junior. In 1927 they were living in Indiana and were in hard circumstances financially. They had pawned or pledged their diamonds and some other personal effects, and plaintiff was running a rooming house. Martin visited William at Emporia in June, 1927, and returned to Indiana. There was later correspondence between them, but the letters were not produced at the trial. On several occasions Martin wrote or wired William for money. These communications annoyed William. He repeatedly talked with Mr. Buck about them and wanted to know: “Do I have to send this money?” Mr. Buck inquired: “Do you owe him anything?” William vehemently asserted that he did not. Mr. Buck’s reply was: “Then you don’t have to send it to him.” Although it is not clear just when it was done, William did send Martin money in the way of loans. In December, 1927, William sent Martin $50. Soon thereafter Martin’s wife, plaintiff herein, disposed of her rooming house and both of them came to Emporia, arriving there about December 14, 1927. William was living at the hotel, being assisted and cared for as needed by the manager and the help. Shortly before that he had fallen, and was bruised but not seriously injured. Previously he had not known or met plaintiff. Plaintiff and her husband had come from Indiana to take care of William. It is not contended the contract relied upon in this action had been made at that time. It is clear from the evidence it had not been made. How
As to the specific.contract relied upon in this action plaintiff’s evidence was to this effect: After the parties had moved from the
From the evidence the court found, among other things:
“The evidence to establish the making and entering into, or the execution of the oral contract is insufficient and is far from satisfactory. I am not convinced by the evidence introduced that the contract set out in the petition was in fact-made.”
Appellant complains of this finding of the trial court. We commend the court for having made it. Inherently the testimony to support the contract relied upon by plaintiff contains many elements of improbability. Shortly before plaintiff and her husband came to Emporia, obviously the business they were engaged in was not successful, for they had pledged their personal effects and plaintiff’s husband was borrowing small sums from his brother. They came to Emporia to care for him, with the understanding that they would be paid for it — not with the understanding they were to have all his Kansas property. In addition to actual living expenses they were paid sums, including the canceled note of plaintiff’s husband, aggregating $4,315.98. If they deemed this insufficient they could have presented a claim for further compensation to the probate court.
To establish the fact that this man — shrewd, capable and painstaking in business matters, who always consulted his banker and frequently his lawyer, and who “didn’t like to let go of his money” even up to three days before his death — should, in addition to what he paid, give plaintiff his Kansas properties of the value of $152,000, without making any change in his will or consulting his business advisers, requires clear and convincing evidence. If plaintiff was to have all of his Kansas properties, why was he so particular, on February 17, about two weeks before his death, when he must have known the end was near, to give plaintiff and her husband $3,235.95 by check and canceling a note? If plaintiff’s contention be true, that was a useless formality. If plaintiff owned all this property immediately on the death of William Laupheimer, why did she permit the will, which gave it to others, to be probated without protest, and the estate to be administered thereunder for seven months
From what we have said we do not want to be understood as passing upon the weight of the evidence in this case. We are simply pointing out some items of evidence necessarily considered by the court in reaching its conclusion of fact and which justify and sustain it. There are other items of evidence in this case, the consideration of which would lead to the same conclusion, but we shall not take space to enumerate them.
Appellant complains that the court did not make requested findings that the conversations between plaintiff and her husband and William Laupheimer took place on December 28, 1927, as testified to by them. The fact that these specific findings were requested, and the court refused to make them, but in lieu thereof made the finding above quoted, is tantamount to a finding that no such conversations took place.
Appellant complains of some of the other findings of fact made by the trial court. We have examined these complaints and find no substantial merit in them. In fact, none of them becomes important if the contract relied upon is not established. The basis of plaintiff’s claim is the contract, and if she cannot establish that she has no right to recover. “The contract is the foundation of plaintiff’s right to recover.” (Dreher v. Brumgardt, 113 Kan, 321, 214 Pac. 419.)
Parol contracts of the character relied upon in this action, when compliance with them requires the transfer of title to real estate, are normally unenforceable under the statute of frauds. They are enforced by a court of equity only when the evidence to establish that the contract was made is clear and convincing, that it has been
There was testimony on the question of whether the physical condition of William Laupheimer affected his mental ability. The court found that his mental ability was impaired to some extent, and in view of that, and of the situation of the parties at the time the alleged contract was made, the rule requiring independent advice was applicable. Appellant complains of that holding. We find it unnecessary to consider that carefully for the reason, unless plaintiff had the contract relied upon, she is not entitled to recover in any event.
Appellant complains of the manner in which the trial was conducted, and this presents the only question of consequence is this case. At the beginning of the trial the following colloquy between the court and counsel took place:
Court: “Before we begin I am wondering shall we proceed in the way we did in the Duncan case in Chase county, reserving rulings and numbering them, or would it be better to rule on them as we go along? Personally I would rather reserve the ruling and preserve the numbers.”
Attorney for defendants: “I am sure, as I stated before, that some close legal questions will be developed in this case. I would suggest that where your honor has any doubt about it you should reserve your rulings; where your mind is clear, rule as we go along.”
Attorney for plaintiff: “That is agreeable to us.”
When defendants began offering their evidence counsel for plaintiff made numerous objections. Some of these were ruled upon at the time, but the rulings of the court were reserved on 212 objections, which were carefully marked for_identification and numbered. Fifty of these objections were later withdrawn. At the time the
There is no material error in the record, and the judgment of the court below is affirmed.